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December 8, 1992

DELOS CY JAMISON, et al., Defendants.


The opinion of the court was delivered by: BRYANT


 The sale and mining of federal coal implicate a large number of overlapping statutory mandates. *fn1" Congress has delegated broad authority to the Secretary of the Interior to promulgate regulations in keeping with those mandates. *fn2"

 Under Department of the Interior regulations, the process by which federal coal lands may be leased and mined proceeds in four basic stages, or tiers. First, the Bureau of Land Management ("the Bureau") engages in land use planning, determining potential uses for large areas of federal land, at which time the Bureau may locate coal deposits potentially appropriate for mining. The Bureau must prepare a "comprehensive" land use plan to permit future coal lease sales. *fn3"

 During land use planning the Bureau identifies areas acceptable for further consideration for coal leasing by applying four "screens":

 1) the potential for development of coal;

 2) a list of "unsuitability criteria" mandated by various statutes;

 3) multiple-use tradeoffs, including alternate resource values; and

 4) surface owner opposition. *fn4"

 Second, the Bureau engages in resource-focused activity planning, and delineates specific tracts for coal leasing. *fn5" At this stage the Bureau prepares a regional lease sale Environmental Impact Statement ("EIS"), as required by the National Environmental Policy Act ("NEPA"), assessing the impact of leasing the proposed sites.

 Third, the Bureau conducts a lease sale. *fn6" Such sales may occur under procedures for "competitive leasing" *fn7" or under "leasing on application" *fn8" where in the activity planning stage private entities have requested specific tracts, generally adjacent to existing mining operations. In the case of so-called "split estate" *fn9" lands, where the government owns coal but private parties own surface rights, sales may take place only after potential bidders obtain the written consent of all "qualified" surface owners and present them to the Bureau. *fn10"

 Fourth, in the case of surface mining, lessees have three years, absent extraordinary circumstances, to submit an "operation and reclamation plan" which must be approved by the Office of Surface Mining Reclamation and Enforcement ("Office of Surface Mining") before a mining permit will be issued. *fn11" Lessees carry the burden of demonstrating in their operation and reclamation plan that the land they seek to mine can be reclaimed. *fn12" Lessees then have ten years, absent extraordinary circumstances, to commence mining "commercial quantities" of coal, or their lease will be terminated. *fn13"

 The regulatory scheme by which the Department of the Interior authorizes the sale and mining of federal coal dates in large part to 1979. *fn14" Plaintiffs brought this suit in 1982, after the Secretary substantially modified the 1979 regulations in an effort to ease the burden on parties seeking to obtain federal coal. *fn15" The Department of the Interior promulgated final rules on July 30, 1982. *fn16" On September 28, 1982 plaintiffs filed their eleven count Complaint, alleging violations of the MLA, FCLAA, SMCRA, NEPA, FLPMA, and the Administrative Procedure Act ("APA"). *fn17"

 A number of plaintiffs' 1982 challenges have been resolved. In count I, plaintiffs claimed that the 1979 regulations constituted "major Federal actions significantly affecting the quality of the human environment," which under NEPA must be preceded by publication of an EIS. *fn18" Count II alleged that the defendants based their decision not to prepare a new or supplemental EIS upon an inadequate environmental assessment. Count III alleged that, in violation of the APA, defendants "failed to provide adequate explanations" for significant changes made in the coal leasing program, and that those changes had "no basis in the record." *fn19" Congress suspended a large part of all federal coal leasing in September 1983. In the summer of 1984 the Secretary of the Interior administratively suspended all regional coal lease sales and undertook a review and revision of the entire federal coal leasing program. On October 4, 1985, the Department completed a Final Supplemental Environmental Impact Statement ("SEIS") on the coal leasing program. On February 21, 1986, the Secretary made a further series of decisions regarding coal leasing, contained in the 1986 Secretarial Issue Document ("SID"), and resumed federal coal leasing.

 Granting a Joint Motion on May 9, 1986, the court dismissed plaintiffs' claims in count I ("Failure to Prepare an Environmental Impact Statement"), count II ("Failure to Prepare Adequate Environmental Assessment") and count III ("Violation of Administrative Procedure Act") as being substantially satisfied. *fn20" The court dismissed count VII ("Violation of the Mineral Leasing Act") as moot, since it was determined that the Department would subject all lands covered by pending preference right lease applications to an unsuitability review. *fn21" The 1985 and 1986 departmental actions changed the status of plaintiffs' counts IV, V, and VIII, which required rebriefing. Counts VI, IX, X and XI remained unchanged. *fn22"

 On November 1, 1988, the court granted defendants' Motion for Summary Judgment based upon plaintiffs' failure to demonstrate standing to bring suit. *fn23" On November 9, 1989, however, the court granted plaintiffs' Motion for Reconsideration and on June 6, 1990 the court vacated its previous Order, finding Article III subject matter jurisdiction to hear plaintiffs' claims, based upon plaintiffs' submission of fifteen affidavits identifying specific tracts of land used by their members, tracts which have been affected by the disputed regulations. *fn24" Supplemental briefing on a number of issues concluded September 1990.

 Six issues remain for determination.

 First, count IV charges that even after changes embodied in the 1986 SID, the coal leasing program continues to violate the land use planning requirements of FCLAA and FLPMA in regard to: 1) activity planning suspended in 1984, 2) emergency leasing, 3) leasing on application, and 4) preference right lease applications. Second, count V charges that the failure to include reclaimability in the "unsuitability criteria" screen applied during land-use planning violates SMCRA. *fn25" Third, count VIII charges that agency procedures for public participation in coal leasing decisions spelled out in an agency handbook do not meet FLPMA's requirement that such procedures be provided for by regulation. Fourth, count IX charges that the failure to apply FCLAA's ten-year deadline for "diligent development" of coal to leases pre-existing at the time FCLAA became law violates FCLAA. *fn26" Fifth, count X argues that FCLAA's three year deadline for submission of an operation and reclamation plan cannot be extended by regulations to include a force majeure exception. Finally, count XI charges that the 1982 regulations do not guarantee SMCRA's requirement that no coal will be leased without the written consent of qualified surface owners.

 The Secretary of the Interior has been granted broad statutory authority to administer the MLA, FCLAA, SMCRA, and FLPMA. As a result, in regard to those statutory schemes this court applies the two standards articulated in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). First, in what is colloquially known as Chevron "prong one," where "Congress has directly spoken to the precise question at issue. . . . that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43. On the other hand, in what is known as "prong two" of Chevron, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." 467 U.S. at 843. The judicial determination of what is permissible requires deference; the standard is essentially one of reasonableness. The court "may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." 467 U.S. at 844.

 1. Count IV, Land Use Planning Requirements of FCLAA and FLPMA

 Land use plans for coal lease sales must meet the statutory requirements of the Federal Coal Leasing Amendments Act of 1976 ("FCLAA") and the Federal Land Planning and Management Act of 1976 ("FLPMA"). As a general matter, FCLAA forbids the Secretary of the Interior to issue a coal lease without prior preparation of a "comprehensive" land use plan, but leaves that term largely undefined. 30 U.S.C. § 201(a)(3)(A)(i). *fn27" Any coal lease sale must be "compatible with" that plan. *fn28" By contrast, FLPMA provides explicit criteria for required planning of all public lands. *fn29" 43 U.S.C. § 1712(c). The requirements of FLPMA are generally recognized as sufficient to meet FCLAA's requirement that plans be "comprehensive," although FCLAA has never been amended to require FLPMA plans. *fn30"

 The new type of sophisticated land-use plans FLPMA mandates are known as "resource management plans" ("RMPs"). RMPs are developed pursuant to regulations originally promulgated August 7, 1979, and amended May 5, 1983 ("the RMP regulations") detailing how the planning requirements of FLPMA, as well as related statutes, should be met. *fn31"

 The RMP regulations contain a section ("the FLPMA transition period regulations") providing for a transition period during which land use plans predating FCLAA and FLPMA, known as management framework plans ("MFPs"), may continue to serve as the basis for agency actions if they meet certain limited requirements. *fn32"

 In order to serve as the basis specifically for a coal lease sale, however, regulations promulgated July 19, 1979 ("the 1979 coal leasing regulations") required that pre-existing MFPs be amended to meet a number of additional substantive criteria. *fn33" The 1979 coal leasing regulations also set a December 31, 1984 deadline for phasing out reliance on amended MFPs. After December 31, 1984, activity planning with respect to any coal deposits administered by the Bureau of Land Management could not be initiated without an RMP developed in conformity with the full RMP regulations. *fn34"

 On July 30, 1982 the Department of the Interior promulgated new regulations eliminating the 1979 coal leasing regulations' substantive criteria for judging the adequacy of amended MFPs. *fn35" Since then, amended MFPs used for coal leasing are held to the general transition period requirements of the RMP regulations. *fn36" The 1982 regulations also eliminated the December 31, 1984 deadline for coal leasing based on amended MFPs. The two changes mean that coal leasing based on land use plans meeting only the FLPMA transition period regulations may apparently continue indefinitely.

 In count IV of their Complaint, plaintiffs charged that the 1982 regulatory scheme's failure to include "specific" criteria to evaluate whether an amended MFP was "comprehensive" violated FCLAA, and that the failure to include a deadline for the complete transition to RMPs violated FLPMA and constituted agency action unlawfully withheld. *fn37" Events since 1982 substantially alter the nature of count IV. In May of 1983 the Department of the Interior indicated its intent to develop RMPs "as rapidly as possible." *fn38" The Department suspended coal lease sales in the summer of 1984 to undertake a thorough review of the coal management program, which had become highly controversial after the 1982 changes, and had been largely suspended by Congress in September 1983. *fn39" In regard to requiring RMPs as a basis for coal leasing, the Secretary of the Interior considered four options:

(1) Any land use plan meeting the requirements of BLM or Forest Service land management planning regulations would be acceptable as the planning base for further coal leasing activities. . . .
(2) New regional coal lease sale activity planning would be initiated only in those areas where RMPs have been completed. The regional coal lease sale activity planning suspended during the program review would proceed based on the land use plans in effect. Emergency leasing, leasing by application, and PRLA processing may proceed based on MFP amendments. . . .
(3) No regional leasing of any kind would occur until RMPs have been completed. This includes sales in those regions where regional coal lease sale activity planning was suspended during the program review. Emergency leasing, leasing by application, and PRLA processing may proceed based on MFP amendments. . . .
(4) No leasing of any kind -- i.e., no regional leasing, leasing by application, and emergency leasing, and no PRLA processing -- would occur until RMPs are completed.

 SID at 34-36.

 On February 21, 1986, the Secretary chose option (2), and the Department resumed coal leasing activity. SID at ES-3. Plaintiffs now challenge continued reliance upon amended MFPs under the transitional provisions of the RMP regulations for: 1) areas where activity planning had been initiated prior to the 1984 suspension of coal lease sale activity planning, 2) emergency leasing, 3) leasing by application, and 4) preference right lease applications. Defendants continue to argue, as they did in 1982, that the amended MFPs in question meet all the requirements of the "applicable statutes," namely FCLAA, SMCRA, and FLPMA. *fn40" Furthermore, defendants argue that preference right leases are not covered by the regulations governing competitive coal lease sales. *fn41"

 A. The Requirements of FCLAA

 FCLAA requires that activity planning for coal lease sales be preceded by a "comprehensive" land use plan. 30 U.S.C. § 301(a)(3)(A)(i). The Department of the Interior initially limited its discretion in how to meet FCLAA's statutory mandate by providing binding, enforceable criteria, in the form of regulations, by which the comprehensiveness of land use plans could be judged. *fn42" In 1982 the Department abandoned that approach and now proceeds on a case-by-case basis, leaving aggrieved parties no choice but to challenge the statutory validity of questionable land use plans one at a time. However, no language in FCLAA requires that the Department of the Interior promulgate regulations to articulate its interpretation of what a "comprehensive" land use plan requires. Congress knows how to require an agency to proceed by rulemaking. *fn43" Absent such a statutory mandate, agencies may choose whether or not to limit their discretion through rulemaking. See SEC v. Chenery Corp., 332 U.S. 194, 203, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947) ("the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency"); Independent U.S. Tanker Owners Committee v. Lewis, 223 U.S. App. D.C. 185, 690 F.2d 908, 917 (D.C. Cir. 1982), (agency not "legally obliged to limit its discretion through rulemaking"). An agency promise to "meet the requirements of applicable statutes" will not be assumed to be made in bad faith. Congress has never amended FCLAA to explicitly provide that only plans meeting the full requirements of FLPMA would be "comprehensive." Consequently, the regulations do not, on their face, violate FCLAA. Plaintiffs must challenge individual land use plans they believe are not "comprehensive."

 B. The Requirements of FLPMA

 The issue for the court is whether indefinite delay in replacing plans that meet only the FLPMA transition period regulations with plans meeting the full RMP regulations is lawful.

 In contrast to FCLAA, the Department of the Interior has limited its discretion in how to meet FLPMA by promulgating a clear regulatory program requiring preparation of RMPs. It is beyond contention that RMPS are the type of plan FLPMA requires. "Land use plans mandated by [FLPMA] are called 'Resource Management Plans.'" *fn44" 1983 amendments to the regulations allegedly demonstrated the Department of the Interior's intent "to complete resource management plans for lands under its jurisdiction as rapidly as possible, on a priority basis, within fiscal and manpower constraints." *fn45" The Department's own 1986 planning document tacitly acknowledged that amended MFPs cannot meet the substantive requirements of FLPMA, by disputing only whether the delay in meeting those substantive requirements had already been excessive. "Nine years have passed since the passage of the Federal Land Policy and Management Act, which some believe is more than enough time for the Bureau to bring its planning base into compliance with the statute." SID at 35 (emphasis added). Six more years have since passed without such compliance.

 FLPMA mandates that land use plans in keeping with the statute's substantive requirements "shall be developed," 43 U.S.C. § 1712(a). If the Bureau has effectively abandoned movement toward elimination of amended MFPs, giving them de facto permanence, then the statutory requirement that the agency "develop" plans is ...

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